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In re Application of Committee on Judiciary

United States District Court, District of Columbia

October 25, 2019



          BERYL A. HOWELL, Chief District Judge.

         Table of Contents

         I. BACKGROUND ......................................................................................................................... 3

         A. The Special Counsel's Investigation ....................................................................................... 3

         B. Release of the Mueller Report .............................................................................................. 13

         C. The Instant Proceeding ......................................................................................................... 16

         II. LEGAL STANDARD ................................................................................................................ 18

         III. DISCUSSION ........................................................................................................................... 19

         A. Rule 6(e)'s “Judicial Proceeding” Requirement is Satisfied Because an Impeachment Trial is Such a Proceeding ....................................................... 21

         1. The Term “Judicial Proceeding” in Rule 6(e) Has a Broad Meaning ..................................... 22

         2. An Impeachment Trial is Judicial in Nature ............................................................................ 26

         3. Historical Practice Before Enactment of Rule 6(e) Informs Interpretation of that Rule ......... 34

         4. Binding D.C. Circuit Precedent Forecloses Any Conclusion Other Than That an Impeachment Trial is a “Judicial Proceeding” .............................................. 37 B. HJC's Consideration of Articles of Impeachment is “Preliminarily To” an Impeachment Trial . 44

         1. Governing Legal Principles Demonstrate That House Proceedings Can be “Preliminarily To” a Senate Impeachment Trial .................................................................................................... 44

         2. HJC's Primary Purpose is to Determine Whether to Recommend Articles of Impeachment . 47

         a. DOJ's Proposed “Preliminarily To” Test is Contrary to Baggot ...................................... 47

         b. No House “Impeachment Inquiry” Resolution is Required .............................................. 49

         c. The Record of House and HJC Impeachment Activities Here Meets the “Preliminarily To” Test ................................................................................ 55

         3. Requiring More Than the Current Showing by HJC, as DOJ Demands, Would Improperly Intrude on Article I Powers Granted to House of Representatives ........................................ 58

         4. DOJ's Remaining Objections are Unpersuasive ..................................................................... 61

         C. HJC Has a “Particularized Need” for the Requested Materials ................................................ 62

         1. Disclosure is Necessary to Avoid Possible Injustice ............................................................... 64

         2. The Need for Disclosure Outweighs the Need for Continued Secrecy ................................... 71

         3. Scope of Disclosure Authorized .............................................................................................. 74

         IV. CONCLUSION ......................................................................................................................... 74

         In March 2019, Special Counsel Robert S. Mueller III ended his 22-month investigation and issued a two-volume report summarizing his investigative findings and declining either to exonerate the President from having committed a crime or to decide that he did. See generally Special Counsel Robert S. Mueller, III, U.S. Dep't of Justice, Report On The Investigation Into Russian Interference In The 2016 Presidential Election (“Mueller Report”) (Mar. 2019), ECF Nos. 20-8, 20-9. The Special Counsel explained that bringing federal criminal charges against the President would “potentially preempt constitutional processes for addressing presidential misconduct.” Id. at II-1. With this statement, the Special Counsel signaled his view that Congress, as the federal branch of government tasked with presidential impeachment duty under the U.S. Constitution, was the appropriate body to resume where the Special Counsel left off.

         The Speaker of the House of Representatives has announced an official impeachment inquiry, and the House Judiciary Committee (“HJC”), in exercising Congress's “sole Power of Impeachment, ” U.S. Const. art. I, § 2, cl. 5, is reviewing the evidence set out in the Mueller Report. As part of this due diligence, HJC is gathering and assessing all relevant evidence, but one critical subset of information is currently off limits to HJC: information in and underlying the Mueller Report that was presented to a grand jury and withheld from Congress by the Attorney General.

         The Department of Justice (“DOJ”) claims that existing law bars disclosure to the Congress of grand jury information. See DOJ's Resp. to App. of HJC for an Order Authorizing Release of Certain Grand Jury Materials (“DOJ Resp.”), ECF No. 20. DOJ is wrong. In carrying out the weighty constitutional duty of determining whether impeachment of the President is warranted, Congress need not redo the nearly two years of effort spent on the Special Counsel's investigation, nor risk being misled by witnesses, who may have provided information to the grand jury and the Special Counsel that varies from what they tell HJC. As explained in more detail below, HJC's application for an order authorizing the release to HJC of certain grand jury materials related to the Special Counsel investigation is granted. See HJC's App. for an Order Authorizing the Release of Certain Grand Jury Materials (“HJC App.”), ECF No. 1.

         I. BACKGROUND

         What follows begins with a brief review of the initiation of the Special Counsel's investigation, the key findings in the Mueller Report and the grand jury secrecy redactions embedded therein, as well as the significant gaps in the Special Counsel's investigation that contributed to the Special Counsel assessment that “[t]he evidence we obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgement.” Mueller Report at II-8.[1] Next reviewed is Congress's response to the release of the public redacted version of the Mueller Report and ensuing-and ultimately unsuccessful-negotiations with DOJ to obtain the full Report and related investigative materials, leading HJC to file the instant application, pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(i).

         A. The Special Counsel's Investigation

         On May 17, 2017, then-Deputy Attorney General (“DAG”) Rod J. Rosenstein appointed Robert S. Mueller III to serve as Special Counsel for DOJ “to investigate Russian interference with the 2016 presidential election and related matters.” U.S. Dep't of Justice, Office of the Deputy Attorney General, Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (“Appointment Order”) (May 17, 2017) (capitalization altered).[2] Prior to the Special Counsel's appointment, the Federal Bureau of Investigation (“FBI”) had already initiated “an investigation into whether individuals associated with the Trump Campaign [had] coordinat[ed] with the Russian government” to interfere in the 2016 presidential election. Mueller Report at I-1. The order authorizing the Special Counsel's appointment thus had the effect of transferring the ongoing FBI investigation to his office. See Appointment Order ¶ b (authorizing the Special Counsel “to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before [Congress] on March 20, 2017”). The Special Counsel was also granted “jurisdiction to investigate matters that arose directly from the FBI's Russia investigation, including whether the President had obstructed justice in connection with Russia-related investigations” and “potentially obstructive acts related to the Special Counsel's investigation itself.” Mueller Report at II-1. Pursuant to this grant of authority-and upon receiving evidence “relating to potential issues of obstruction of justice involving the President”-the Special Counsel “determined that there was a sufficient factual and legal basis to further investigate . . . the President.” Id. at II-12.

         In compliance with the DOJ regulations authorizing his appointment, upon completion of his investigation the Special Counsel issued a confidential report to the Attorney General “explaining the prosecution or declination decisions [he] reached.” Id. at I-1 (quoting 28 C.F.R § 600.8(c)). That Report laid out the Special Counsel's findings in two volumes, totaling 448 pages. Both HJC and DOJ point to the contents of the Report as highly relevant to resolving the current legal dispute. Indeed, DOJ submitted the public redacted version of the Mueller Report as exhibits to support its arguments. See DOJ's Resp., Exs. 8 (Volume I), 9 (Volume II), ECF Nos. 20-8, 20-9. Therefore, a recounting of some of the key events chronicled in and conclusions (or lack thereof) reached by the Special Counsel in the Mueller Report is in order.

         Volume I of the Mueller Report “describe[s] the factual results of the Special Counsel's investigation of Russia's interference in the 2016 presidential election.” Mueller Report at I-2. The Special Counsel concluded that “[t]he Russian government interfered in the 2016 presidential election in sweeping and systematic fashion, ” “principally through two operations.” Id. at I-1. “First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then released stolen documents.” Id. Russia hacked and stole “hundreds of thousands of documents, ” id. at I-4, from the Democratic National Committee, the Democratic Campaign Committee, and the Clinton Campaign, and then disseminated those documents through fictitious online personas and through the website WikiLeaks in order to influence the outcome of the 2016 presidential election. Id. at I-4, 38, 41, 48, 58.

         Volume I of the Mueller Report also details evidence of “links between the Russian government and individuals associated with the Trump [2016 Presidential] Campaign.” Id. at I-2-3. According to the Special Counsel, “the [Trump] Campaign expected it would benefit electorally from information stolen and released through Russian efforts, ” and the links between the Russian government and the Trump Campaign were “numerous.” Id. at I-1-2. For instance, a meeting occurred on June 9, 2016 at Trump Tower in New York City, between a Russian lawyer and senior Trump Campaign officials Donald Trump Jr., Jared Kushner, and then-campaign manager Paul Manafort, triggered by information provided to those campaign officials that the Russian lawyer would deliver “official documents and information that would incriminate Hillary [Clinton].” Id. at I-6 (internal quotation marks omitted). Additionally, the Mueller Report documents connections between Ukraine and Manafort, who had previously “work[ed] for a pro-Russian regime in Ukraine.” Id. at I-129. Among other things, the Special Counsel determined that “during the campaign” Manafort-through “Rick Gates, his deputy on the Campaign”-“periodically sent” internal Trump Campaign “polling data” to Konstantin Kilimnik, Manafort's long-time business associate in Ukraine with alleged ties to Russian intelligence, with the expectation that Kilimnik would “share that information with others in Ukraine.” Id. The Mueller Report further recounts evidence suggesting that then-candidate Trump may have received advance information about Russia's interference activities, stating:

Manafort, for his part, told the Office that, shortly after WikiLeaks's July 22 release, Manafort also spoke with candidate Trump [redacted]. Manafort also [redacted] wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch [redacted] about future WikiLeaks releases.
According to Gates, by the late summer of 2016, the Trump campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted] while Trump and Gates were driving to LaGuardia Airport. [Redacted], shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.

Id. at I-53-54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206 redacted due to grand jury secrecy).

         The public version of Volume I contains over 240 redactions on the basis of grand jury secrecy.[3] These redactions occur in parts of the Mueller Report that include discussion of the Trump Tower Meeting, then-candidate Trump's discussion with associates about releases of hacked documents, and Manafort's contacts with Kilimnik. See Id. at I-54 & n.206, 111-12, 117, 120, 136-37, 140, 143.

         Volume II of the Mueller Report summarizes the “obstruction investigation, ” which “focused on a series of actions by the President that related to the Russian-interference investigations, including the President's conduct towards the law enforcement officials overseeing the investigations and the witnesses to relevant events.” Id. at II-3 (capitalization altered). The Special Counsel determined that “the President of the United States took a variety of actions towards the ongoing [Russia-related investigations] . . . that raised questions about whether he had obstructed justice.” Id. at II-1. For example, in the summer of 2017 after news reports about the Trump Tower Meeting, President Trump “directed aides not to publicly disclose the emails setting up the June 9 meeting” and “edited a press statement for Trump Jr., ” eliminating the portion “that acknowledged that the meeting was with ‘an individual who [Trump Jr.] was told might have information helpful to the campaign, '” even while President Trump's personal attorney “repeatedly denied the President had played any role” in Trump Jr.'s statement. Id. at II-5 (alteration in original).

         In another instance involving potential witness tampering, the Mueller Report examined the events leading to former Trump Organization executive and attorney Michael Cohen providing false testimony to Congress, in 2017, about a deal to build a Trump Tower in Moscow, Russia. Id. at II-6. While Cohen was preparing to give that false testimony the President's personal counsel told Cohen, according to Cohen, that “Cohen should ‘stay on message' and not contradict the President.” Id. Then, in April 2018, after Cohen became the subject of a criminal investigation and the FBI had searched Cohen's home and office, the President stated publicly “that Cohen would not ‘flip'” and “contacted [Cohen] directly to tell him to ‘stay strong, '” at the same time that President Trump's personal counsel “discussed pardons” with Cohen. Id.

         As DOJ points out, DOJ Resp. at 32 n.19, the public version of Volume II contains some, but far fewer, redactions on the basis of grand jury secrecy than does the public version of Volume I.[4] Again, the Mueller Report recounts an incident when then-candidate Trump spoke to associates indicating that he may have had advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks's July 22, 2016 release of hacked documents, [Manafort] spoke to Trump [redacted]; Manafort recalled that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on upcoming releases. Around the same time, Gates was with Trump on a trip to an airport [redacted], and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy). In addition, a discussion related to the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special Counsel's Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who attended the June 9 meeting.” Id. at II-105 (redactions in original).

         The Mueller Report acknowledges investigative “gaps” that were sufficiently significant that the Special Counsel could not “rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.” Id. at I-10. Six “identified gaps” were that: (1) “[s]ome individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office's judgment, appropriate candidates for grants of immunity”; (2) “[s]ome of the information obtained . . . was presumptively covered by legal privilege and was screened from investigators”; (3) “other witnesses and information-such as information known to attorneys or individuals claiming to be members of the media”-were not pursued “in light of internal Department of Justice policies”; (4) “practical limits” prevented the gathering of information and questioning of witnesses abroad; (5) “[e]ven when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete”; and (6) “some of the individuals we interviewed or whose conduct we investigated-including some associated with the Trump Campaign-deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records.” Id. Consequently, the Mueller Report cautions that “[a] statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” Id. at I-2.

         The Report acknowledges that these gaps adversely affected the investigation and, in some instances, precluded the Special Counsel from reaching any conclusion about whether criminal conduct occurred. For example, evidence related to the President's knowledge about his personal attorney's involvement in the preparation of Cohen's false testimony to Congress was not pursued. The Mueller Report states that “[t]he President's personal counsel declined to provide us with his account of his conversations with Cohen, ” and “we did not seek to obtain the contents of any . . . communications” between President Trump and his attorney during that time period. Id. at II-154. “The absence of evidence about the President and his counsel's conversations about the drafting of Cohen's statement precludes us from assessing what, if any, role the President played.” Id. In another example, the Special Counsel examined the circumstances of a meeting held, during the transition, on January 11, 2017, on the Seychelles Islands between Kirill Dmitriev, the chief executive officer of Russia's sovereign wealth fund, and Erik Prince, a businessman with close ties to Trump Campaign associates, including senior Trump advisor Steve Bannon. See id. at I-7, 148. Prince said he discussed the meeting with Bannon in January 2017, but Bannon denied this, and “[t]he conflicting accounts . . . could not be independently clarified . . . because neither [Prince nor Bannon] was able to produce any of the [text] messages they exchanged in the time period surrounding the Seychelles meeting.” Id. at I-156. “Prince's phone contained no text messages prior to March 2017” and “Bannon's devices similarly contained no messages in the relevant time period, ” and neither Prince nor Bannon could account for the absent messages. Id.; see also Id. at I-153-55 (extensive grand jury redactions).[5]

         Some areas of the report describing such gaps contain redactions of grand jury material. For example, in describing the Trump Tower Meeting, the Mueller Report states: “The Office spoke to every participant [at the Trump Tower Meeting] except [Natalia] Veselnitskaya and Trump, Jr., the latter of whom declined to be voluntarily interviewed by the Office, ” with the remainder of the sentence redacted for grand jury secrecy. Id. at I-117. The Special Counsel declined to pursue charges related to this meeting in part because “the Office did not obtain admissible evidence likely to meet the government's burden to prove beyond a reasonable doubt that these individuals acted ‘willfully.'” Id. at I-186.[6]

         The Mueller Report also reveals the Special Counsel's unsuccessful effort to speak directly with the President: “We also sought a voluntary interview with the President. After more than a year of discussion, the President declined to be interviewed, ” which statement is followed by two lines redacted for references to grand jury material. Id. at II-13. Although “the President did agree to answer written questions on certain Russia-related topics, and he provided us with answers, ” the President refused “to provide written answers to questions on obstruction topics or questions on events during the transition.” Id. The Special Counsel acknowledged “that we had the authority and legal justification to issue a grand jury subpoena to obtain the President's testimony, ” but “chose not to do so.” Id.; see also Mueller Report App'x C (describing efforts to interview the President in greater detail). When the Special Counsel testified before Congress on July 24, 2019, he acknowledged that the President's written responses to questions posed by the Special Counsel's Office were “generally” not only “inadequate and incomplete, ” but also “showed that he wasn't always being truthful.” HJC App., Ex. W, Former Special Counsel Robert S. Mueller, III on the Investigation into Russian Interference in the 2016 Presidential Election: Hearing before the H. Permanent Select Comm. on Intelligence, 116th Cong. 83 (July 24, 2019), ECF No. 1-24.

         The Special Counsel's investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” Mueller Report at I-2. Nor did the Special Counsel “make a traditional prosecutorial judgment” or otherwise “draw ultimate conclusions about the President's conduct.” Id. at II-8. At the same time, the Special Counsel stated that “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” Id. at II-2. “[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.” Id.; see also Id. at II-8, II-182 (reiterating that Report “does not exonerate” President). “Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, ” the Special Counsel “accepted” the DOJ Office of Legal Counsel's (“OLC”) legal conclusion that “‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions' in violation of ‘the constitutional separation of powers.'” Id. at II-1 (citation omitted) (quoting OLC Op. at 222, 260). This OLC legal conclusion has never been adopted, sanctioned, or in any way approved by a court.

         At the same time, impeachment factored into this analysis, as the Special Counsel also concluded “that Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office [which] accords with our constitutional system of checks and balances and the principle that no person is above the law.” Id. at II-8.

         B. Release of the Mueller Report

         On March 22, 2019, Attorney General (“AG”) William Barr, as required by 28 C.F.R. § 600.9(a)(3), notified the Chairmen and Ranking Members of the United States House and Senate Judiciary Committees, via a one-page letter, that the Special Counsel had completed his investigation. DOJ Resp., Ex. 1, Letter from William P. Barr, Attorney Gen., Dep't of Justice, to Lindsey Graham, Chairman, S. Comm. on the Judiciary, et al. (Mar. 22, 2019), ECF No. 20-1. AG Barr stated that he “intend[ed] to consult with Deputy Attorney General Rosenstein and Special Counsel Mueller to determine what other information from the report [could] be released to Congress and the public consistent with the law, ” and that he “remain[ed] committed to as much transparency as possible.” Id. Two days later, on March 24, 2019, AG Barr sent a second, four-page letter to the Chairmen and Ranking Members of the United States House and Senate Judiciary Committees, advising them “of the principal conclusions reached by Special Counsel Robert S. Mueller III, ” and reiterating his “intent . . . to release as much of the Special Counsel's report as [possible] consistent with applicable law, ” noting that he first needed to identify information “subject to Federal Rule of Criminal Procedure 6(e), ” as well as “information that could impact other ongoing matters.” DOJ Resp., Ex. 2, Letter from William P. Barr, Attorney Gen., Dep't of Justice, to Lindsey Graham, Chairman, S. Comm. on the Judiciary, et al. 1, 4 (Mar. 24, 2019), ECF No. 20-2.[7]

         The next day, March 25, 2019, the chairpersons of six House committees (“House Committee Chairpersons”)-including HJC Chairman Jerrold Nadler-responded to AG Barr in a three-page letter. See HJC App., Ex. C, Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, et al., to William P. Barr, Attorney Gen., Dep't of Justice (Mar. 25, 2019), ECF No. 1-4. Highlighting that each of their committees was “engaged in oversight activities that go directly to the President's conduct, his attempts to interfere with federal and congressional investigations, his relationships and communications with the Russian government and other foreign powers, and/or other alleged instances of misconduct, ” the House Committee Chairpersons “formally request[ed]” that AG Barr “release the Special Counsel's full report to Congress” and “begin transmitting the underlying evidence and materials to the relevant committees.” Id. at 1. This information, they explained, was necessary “to perform their duties under the Constitution, ” such as their duty to “make an independent assessment of the evidence regarding obstruction of justice.” Id. at 1, 2.[8]

         Four days later, on March 29, 2019, AG Barr responded to both the House Committee Chairpersons' letter and a letter sent by Senate Judiciary Committee (“SJC”) Chairman Lindsey Graham. See DOJ Resp., Ex. 3, Letter from William P. Barr, Attorney Gen., Dep't of Justice, to Lindsey Graham, Chairman, S. Comm. on the Judiciary, and Jerrold Nadler, Chairman, H. Comm. on the Judiciary (Mar. 29, 2019), ECF No. 20-3. AG Barr reaffirmed that he was preparing the Report for release, again noting that redactions would be required to protect material that was subject to grand jury secrecy under Rule 6(e) and that could compromise sensitive sources and methods, as well as to protect information that could pose harm to other ongoing matters or was related to the privacy and reputations of third parties. Id. at 1.

         The House Committee Chairpersons objected to AG Barr's proposed redactions. See HJC App., Ex. D, Letter from Jerrold Nadler, Chairman, H. Comm. on the Judiciary, et al., to William P. Barr, Attorney Gen, Dep't of Justice (Apr. 1, 2019), ECF No. 1-5. They observed that “[t]he allegations at the center of Special Counsel Mueller's investigation strike at the core of our democracy, ” such that “Congress urgently needs his full, unredacted report and its underlying evidence in order to fulfill its constitutional role.” Id. at 2; see also Id. App'x at 1 (stating that Congress has an “independent duty to investigate misconduct by the President”). As to grand jury material, the House Committee Chairpersons proposed that DOJ “seek leave from the district court to produce those materials to Congress-as it has done in analogous situations in the past, ” id. at 2, explaining that the material was needed because “[H]C] is engaged in an ongoing investigation of whether the President has undermined the rule of law, including by compromising the integrity of the Justice Department, ” id. App'x at 2.

         On April 18, 2019, AG Barr released the Mueller Report in redacted form to the Congress and the public. See DOJ Resp., Ex. 4, Letter from William P. Barr, Attorney Gen., Dep't of Justice, to Lindsey Graham, Chairman, S. Comm. on the Judiciary, et al. (Apr. 18, 2019), ECF No. 20-4. AG Barr also promised to “make available” to SJC Chairman Graham, HJC Ranking Member Dianne Feinstein, HJC Chairman Nadler, and HJC Ranking Member Collins “a version of the report with all redactions removed except those relating to grand-jury information.” Id. at 4.

         Not satisfied with the redacted version of the Mueller Report, the next day HJC served a subpoena on AG Barr requiring the production of three classes of documents: (1) “[t]he complete and unredacted version of the [Mueller Report], ” including attachments; (2) “[a]ll documents referenced in the Report”; and (3) “[a]ll documents obtained and investigative materials created by the Special Counsel's office.” HJC App., Ex. G, Subpoena by Authority of the H. of Representatives to William P. Barr, Attorney Gen., Dep't of Justice 3 (Apr. 19, 2019), ECF No. 1-8.

         DOJ has granted HJC access to “the entirety of Volume II, with only grand jury redactions” and did “the same with regard to Volume I” for “the Chairman and Ranking Member from [H]C].” DOJ Resp. at 6 n.2. DOJ has not, however, allowed HJC to review the portions of the Mueller Report redacted pursuant to Rule 6(e). See, e.g., HJC App., Ex. K, Letter from Stephen E. Boyd, Assistant Attorney Gen., Dep't of Justice, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary 4 (May 1, 2019), ECF No. 1-12 (stating that “Rule 6(e) contains no exception that would permit the Department to provide grand-jury information to the Committee in connection with its oversight role”).

         C. The Instant Proceeding

         On July 26, 2019, HJC submitted the instant application for an order pursuant to Federal Rule of Criminal Procedure 6(e) authorizing the release to HJC of certain grand jury materials related to the Special Counsel's investigation. HJC App. HJC requests the release to it of three categories of material:

1. all portions of [the Mueller Report] that were redacted pursuant to Federal Rule of Criminal Procedure 6(e);
2. any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e); and
3. transcripts of any underlying grand jury testimony and any grand jury exhibits that relate directly to (A) President Trump's knowledge of efforts by Russia to interfere in the 2016 U.S. Presidential election; (B) President Trump's knowledge of any direct or indirect links or contacts between individuals associated with his Presidential campaign and Russia, including with respect to Russia's election interference efforts; (C) President Trump's knowledge of any potential criminal acts by him or any members of his administration, his campaign, his personal associates, or anyone associated with his administration or campaign; or (D) actions taken by former White House Counsel Donald F. McGahn II during the campaign, the transition, or McGahn's period of service as White House Counsel.”

Id. at 1-2.

         After entry of a scheduling order in accord with the dates proposed by the parties, see Min. Ord. (July 31, 2019), DOJ filed its response to HJC's application on September 13, 2019, maintaining that Rule 6(e) prohibits disclosure of the requested material to HJC, see DOJ Resp., and HJC filed its reply on September 30, 2019, see HJC's Reply in Support of its App. for an Order Authorizing the Release of Certain Grand Jury Materials (“HJC Reply”), ECF No. 33.[9]Following a hearing on October 8, 2019, the parties provided supplemental submissions to address additional issues not covered by the initial briefing. See Min. Ord. (October 8, 2019).[10]This matter is now ripe for resolution.


         Under Rule 6(e) of the Federal Rules of Criminal Procedure, disclosure of “a matter occurring before the grand jury” is generally prohibited. Fed. R. Crim. P. 6(e)(2)(B). While witnesses are expressly exempted from any “obligation of secrecy, ” id. 6(e)(2)(A), the Rule provides a list of seven categories of persons privy to grand jury proceedings who must keep secret “[i]nformation . . . presented to the grand jury, ” In re Sealed Case No. 99-3091 (Office of Indep. Counsel Contempt Proceeding), 192 F.3d 995, 1002 (D.C. Cir. 1999) (per curiam), including grand jurors, interpreters, court reporters, operators of recording devices, persons who transcribe recorded testimony, attorneys for the government, and certain other persons to whom authorized disclosure is made, Fed. R. Crim. P. 6(e)(2)(B)(i)-(vii).[11]

         Rule 6(e) also sets out exceptions to grand jury secrecy, some of which allow disclosure without any judicial involvement and others of which require either judicial notice or a court order. See Fed. R. Crim. P. 6(e)(3)(A)-(E).[12] The D.C. Circuit recently held, in McKeever v. Barr, 920 F.3d 842 (D.C. Cir. 2019), reh'g denied, Order, No. 17-5149 (D.C. Cir. July 22, 2019), docketing petition for cert., No. 19-307 (U.S. Sept. 5, 2019), that the “text of the Rule” prevents disclosure of a “‘matter appearing [sic] before the grand jury'” “‘unless these rules provide otherwise.'” Id. at 848 (quoting incorrectly Fed. R. Crim. P. 6(e)(2)(B)).[13] In the D.C. Circuit's binding view, “deviations from the detailed list of exceptions in Rule 6(e) are not permitted, ” id. at 846, and thus a “district court has no authority outside Rule 6(e) to disclose grand jury matter, ” id. at 850.[14]


         HJC is “not requesting the entire grand jury record” of the Special Counsel's investigation. HJC Reply at 24.[15] Instead, HJC seeks only disclosure of the grand jury information referenced in or underlying the Mueller Report as well as grand jury information collected by the Special Counsel relating to four categories of information pursuant to Rule 6(e)'s exception for disclosure “preliminarily to or in connection with a judicial proceeding.” HJC App. at 26 (internal quotation marks omitted) (quoting Fed. R. Crim. P. 6(e)(3)(E)(i)). Disclosure of grand jury information is proper under this exception when three requirements are satisfied. The person seeking disclosure must first identify a relevant “judicial proceeding” within the meaning of Rule 6(e)(3)(E)(i); then, second, establish that the requested disclosure is “preliminarily to” or “in connection with” that proceeding; and, finally, show a “particularized need” for the requested grand jury materials. See United States v. Sells Eng'g, Inc., 463 U.S. 418, 443 (1983) (“Rule 6(e)(3)([E])(i) simply authorizes a court to order disclosure ‘preliminarily to or in connection with a judicial proceeding.' . . . We have consistently construed the Rule, however, to require a strong showing of particularized need for grand jury materials before any disclosure will be permitted.”); United States v. Baggot, 463 U.S. 476, 480 (1983) (explaining that the “preliminarily to or in connection with a judicial proceeding” and the “particularized need” requirements “are independent prerequisites to ([E])(i) disclosure” (internal quotation marks omitted)).

         As discussed more fully below, HJC has identified the requisite “judicial proceeding” to be a possible Senate impeachment trial, which is an exercise of judicial power the Constitution assigned to the Senate. See U.S. Const. art. I, § 3, cl. 6. HJC has demonstrated that its current investigation is “preliminarily to” a Senate impeachment trial, as measured-per binding Supreme Court and D.C. Circuit precedent-by the “primary purpose” of HJC's requested disclosure to determine whether to recommend articles of impeachment against the President. This purpose has only been confirmed by developments occurring since HJC initially submitted its application. Finally, HJC has further shown a “particularized need” for the requested grand jury materials that outweighs any interest in continued secrecy. See Douglas Oil Co. of Ca. v. Petrol Stops Nw., 441 U.S. 211, 222-23 (1979). The need for continued secrecy is reduced, given that the Special Counsel's ...

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